WHEREAS, FEMA also may perform its own Undertakings pursuant to this Agreement; and

Transcription

1 TEXAS PROGRAMMATIC AGREEMENT AMONG THE FEDERAL EMERGENCY MANAGEMENT AGENCY; THE TEXAS HISTORICAL COMMISSION; AND THE TEXAS DEPARTMENT OF PUBLIC SAFETY/ TEXAS DIVISION OF EMERGENCY MANAGEMENT WHEREAS, the mission of the Federal Emergency Management Agency (FEMA) of the Department of Homeland Security is to support our citizens and first responders to ensure that as a nation we work together to build, sustain, and improve our capability to prepare for, protect against, respond to, recover from, and mitigate all hazards; and WHEREAS, FEMA makes assistance available to States, Commonwealths, communities, Federally recognized Indian Tribes (Tribes) and other eligible entities through Federal programs (Programs), including: the Individuals and Households Grant, Pre-Disaster Mitigation (PDM), Public Assistance (PA) Grant, and Hazard Mitigation Grant Programs (HMGP) (Programs), further described in Appendix A; pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C ) (Stafford Act), and its implementing regulations in Title 44 of the Code of Federal Regulations (44 CFR Part 206); the National Flood Insurance Reform Act of 1994 (42 U.S.C et seq.), and its implementing regulations in 44 CFR Part 78; the Disaster Mitigation Act of 2000 and its implementing regulations; the Post- Katrina Emergency Management Reform Act of 2006 (PKEMRA); and other such Programs, Acts, or implementing regulations that may be authorized by the United States (U.S.) Congress; and WHEREAS, FEMA has determined that implementation of these Programs may result in Undertakings (as defined by 16 U.S.C. 470w and 36 CFR (y)) that may affect properties in the State of Texas (State) that are listed in or eligible for listing in the National Register of Historic Places (National Register); and FEMA has consulted with the Advisory Council on Historic Preservation (ACHP) and the Texas Historical Commission, as the State Historic Preservation Officer (SHPO) pursuant to 36 CFR Part 800, implementing regulations of Sections 106 and 110(f) of the National Historic Preservation Act (NHPA) (16 U.S.C. 470f and 470h-2); and WHEREAS, to implement the Programs, FEMA will provide financial and technical assistance to the State, which will in turn provide assistance to eligible Applicants, as defined by the FEMA Programs, and as such the Texas Department of Public Safety/Texas Division of Emergency Management (TXDPS) will administer the Programs for the State, and has participated in this consultation; and WHEREAS, FEMA also may perform its own Undertakings pursuant to this Agreement; and WHEREAS, this Programmatic Agreement will complement agreements currently being negotiated between FEMA and Federally recognized Tribes of the State of Texas, as well as those with ancestral tribal interests in the state; and will ensure other aspects of FEMA s required Section 106 compliance with the Tribes; and

2 WHEREAS, in anticipation or in the immediate aftermath of an event, impacted communities and the State of Texas, may conduct critical preparedness, response and recovery activities to safeguard public health and safety and to restore vital community services and functions before, during, and/or following an event. Some of these activities may become Undertakings requiring Section 106 review subject to the terms of this Agreement, and FEMA shall coordinate the appropriate review as warranted; and WHEREAS, this Agreement conforms to the FEMA Prototype Agreement as designated by the ACHP on December 17, 2013, and therefore does not require the participation or signature of the ACHP; and WHEREAS, the definitions in 36 CFR apply to this Agreement; and WHEREAS, implementation of the Programs will be more efficient if an Agreement is established in accordance with 36 CFR (b)(2) to: specify procedures, roles, and responsibilities in the review process; eliminate further Signatory review of certain routine activities with little potential to adversely affect Historic Properties; and streamline reviews so that the effects of the Programs on Historic Properties are considered while expediting the delivery of FEMA assistance; NOW, THEREFORE, FEMA, SHPO, and TXDPS agree that the FEMA Programs will be administered in the State of Texas pursuant to the following Stipulations to satisfy FEMA s Section 106 responsibilities for all of its Undertakings, and effectively integrate preservation requirements of those Undertakings. FEMA will not fund an Undertaking in Texas until it is reviewed pursuant to this Agreement. STIPULATIONS To the extent of its legal authority, and in coordination with the other Signatories, FEMA shall ensure that the following measures are implemented: I. GENERAL A. Applicability 1. The execution of this Agreement supersedes the terms of the previously executed Agreement in the State of Texas dated November 30, FEMA will assess proposed Undertakings that are in Section 106 review on the date of execution of this Agreement. FEMA may complete this review pursuant to the ongoing process; and if so, will make all reasonable efforts to consult with Tribes. For an Undertaking that has been completely reviewed, FEMA will review any change in scope of work pursuant to this Agreement, unless an existing Memorandum of Agreement (MOA) or Secondary Programmatic Agreement (Secondary Agreement) requires otherwise. FEMA, SHPO and TXDPS Texas Programmatic Agreement of 50

3 3. In the event of a Stafford Act major disaster or emergency declaration (Declaration), State, Tribal and local governments may lack the capability to perform or to contract for emergency work, and instead request that the work be accomplished by a Federal agency. Through a mission assignment (MA), FEMA may direct appropriate Federal agencies to perform the work. This Agreement will apply to such Federal assistance undertaken by or funded by FEMA pursuant to Titles IV and V of the Stafford Act and 44 CFR Part FEMA may utilize this Agreement to fulfill its Section 106 responsibilities and those of other Federal agencies that designate FEMA as the lead Federal agency pursuant to 36 CFR 800.2(a)(2) with appropriate notification to the other Signatories and the ACHP regarding Undertakings that fall within the scope of this Agreement. When FEMA is not designated as the lead Federal agency, all Federal agencies, including FEMA, remain individually responsible for their compliance with Section If another Federal program or Federal agency has concluded Section 106 consultation review and approved an Undertaking within the past five (5) years, FEMA has no further requirement for Section 106 review provided, that FEMA confirms that the scope and effect [as defined by 36 CFR (i)] of its Undertaking are the same as that of the Undertaking reviewed by the previous agency, and SHPO or Tribal consultation and concurrence is documented. FEMA shall document these findings to the project file in order to confirm that the requirements of Section 106 have been satisfied. Should FEMA, in consultation with SHPO determine that the previous Section 106 review was insufficient or involved interagency disagreements about eligibility, effect, and/or treatment measures, FEMA shall conduct additional Section 106 consultation in accordance with the terms of this Agreement. 6. With the written concurrence of the Signatories, other Federal agencies providing financial assistance for the type of Program activities covered under the terms of this Agreement may satisfy their Section 106 responsibilities by accepting and complying with the terms of this Agreement. a. Other Federal Agencies may include States and units of local government who have assumed environmental responsibilities of the U.S. Department of Housing and Urban Development, and acting as the Responsible Entity pursuant to 24 CFR Part 58, are responsible for environmental review, decision-making and action. b. In such situations, the other Federal Agency shall notify the Signatories in writing of its intent to use this Agreement to achieve compliance with its Section 106 requirements, and consult with the Signatories regarding its Section 106 compliance responsibilities. Resumes of staff who meet the Secretary s Professional Qualification Standard(s) and will review Tier II projects in accordance with Appendix B of this Agreement shall be provided to FEMA and the SHPO/THPO. 7. For FEMA Undertakings that also are within the jurisdiction of the Federal Communications Commission (FCC) and within the scope of its Section 106 Programmatic Agreements for communication facilities, FEMA defers Section 106 FEMA, SHPO and TXDPS Texas Programmatic Agreement of 50

4 review in accordance with the ACHP Program Comment of October 23, The approval of funding for the FEMA Undertaking will be conditioned on the compliance of the applicant with FCC s applicable Section 106 review, including any required consultation with Tribes. FEMA will notify the SHPO when it applies the ACHP Program Comment to an Undertaking. FEMA remains responsible for any FEMA Undertakings it determines are outside of the jurisdiction of FCC. 8. FEMA has determined that the following types of activities have limited or no potential to affect historic properties and FEMA has no further Section 106 responsibilities with regards to them, pursuant to 36 CFR 800.3(a)(1): a. Pursuant to 44 CFR (m), assistance to individuals and households provided under 44 CFR Part 206, Subpart D and Section 408 of the Stafford Act, including funding for owner-occupied home repair and replacement, content replacement, personal property, transportation and healthcare expenses, is exempt from the provisions of Section 106. For ground disturbing activities, and construction related to 44 CFR (b)(1)(ii) (temporary housing), (b)(3) (replacement housing), (b)(4) (permanent housing construction), (c)(1)(vi) (privately-owned access routes) and rental units (multi-family repair), FEMA will conduct Section 106 review. b. Administrative actions such as personnel actions, travel, procurement of services, supplies (including vehicles and equipment) for the support of day-to-day and emergency operational activities, and the temporary storage of goods provided storage occurs within existing facilities or on previously disturbed soils. c. Preparation, revision, and adoption of regulations, directives, manuals, and other guidance documents. d. Granting of variances, and actions to enforce Federal, State, or local codes, standards or regulations. e. Monitoring, data gathering, and reporting in support of emergency and disaster planning, response and recovery, and hazard activities. f. Research and development of hazard warning systems, hazard mitigation plans, codes and standards, and education/public awareness programs. g. Assistance provided for planning, studies, design and engineering costs that involve no commitment of resources other than staffing and associated funding. h. Assistance provided for training, management and administration, exercises, and mobile/portable equipment purchases; with the exception of potential grounddisturbing activities and modification of existing structures. FEMA, SHPO and TXDPS Texas Programmatic Agreement of 50

5 i. Community Disaster Loans for funding to perform governmental functions for any eligible jurisdiction in a designated disaster area that has suffered a substantial loss of tax and other revenue. j. Acquisition or lease of existing facilities where planned uses conform to past use or local land use requirements. k. Funding the administrative action of acquiring properties in buyout projects, including the real estate transaction, but excluding demolition. l. Reimbursement of applicant s insurance deductible, when the deductible is the total FEMA eligible cost for the project. m. Labor, equipment and materials used to provide security in the Declaration area, including lease, rental, purchase or repair of equipment or vehicles and payment for staff and contract labor. n. Application of pesticides to reduce adverse public health effects, including aerial and truck-mounted spraying. o. Unemployment assistance. p. Distribution of food coupons. q. Legal services. r. Crisis counseling. 9. Any FEMA Programs authorized by the United States Congress in the future may be included in this Agreement in accordance with Stipulation IV.A, Amendments. Any change in the FEMA name, Programs, or organizational structure will not affect this Agreement. B. Roles and Responsibilities of the Signatories 1. FEMA: a. Will retain staff or contractors who meet the applicable Secretary of the Interior s (Secretary) Professional Qualifications Standards (Qualifications), defined in 36 CFR Part 61, Appendix A, as determined by FEMA s Federal Preservation Officer (FPO) or designee, for Section 106 review of the Undertakings. b. May request that other Federal, State, or Applicant staff identify and evaluate Historic Properties on its behalf, in accordance with 36 CFR (b-c). This delegation includes, but is not limited to, preparation of documentation about effects of FEMA, SHPO and TXDPS Texas Programmatic Agreement of 50

6 Undertakings on Historic Properties, in accordance with 36 CFR FEMA will ensure that this staff also meets the Qualifications, as determined by the FPO or designee. c. Will make every effort to have Qualified FEMA staff coordinating directly with SHPO in accordance with 36 CFR (b-c) before following through with Stipulation I.B.1.b. d. Will review any eligibility or effects determinations provided by a delegated party. This includes correspondence between the delegated party and SHPO. The determinations will be reviewed and approved before the project is funded. e. Will ensure that documentation provided for review pursuant to this Agreement is consistent with the applicable SHPO guidelines for project submittal found at such as, but not limited to: i. Architectural documentation of standing structures; ii. For fieldwork: Archeological Survey Standards for Texas; and iii. For publications: The Secretary of the Interior s Standards and Guidelines for Historic Preservation, as at f. Will require the same actions of its Applicants, as will TXDPS of its Applicants, as described throughout this Agreement. g. Prior to authorizing the release of funds for individual Undertakings requiring grant conditions pursuant to this Agreement, FEMA shall inform TXDPS of all stipulations and conditions and ensure that they are understood so they can be adequately conveyed to the Applicant. FEMA shall work in partnership with the TXDPS to provide Applicants with guidance on in-kind repair pursuant to The Secretary of the Interior s Standards for the Treatment of Historic Properties 1995 (Standards), 36 CFR Part 68, or the most updated version, and techniques to avoid or minimize adverse effects to historic properties h. Will provide the Signatories with an Annual Report about this Agreement for the previous calendar year, by March 31 of each year that the Agreement is in effect, unless all Signatories concur in an extension. The Report will summarize the Undertakings reviewed, and actions taken to implement the Agreement; and will recommend any actions or revisions to be considered during the next calendar year. TXDPS will assist FEMA in preparing this Report. i. Will confer annually and as necessary with the signatories to this Agreement within ninety (90) days after issuance of the annual report, to review the report and/or discuss issues and concerns in greater detail. TXDPS will assist FEMA in initiating this FEMA, SHPO and TXDPS Texas Programmatic Agreement of 50

7 consultation; which may be conducted by telephone, meeting, electronically, or other appropriate method of communication. j. Shall notify the SHPO, as soon as practicable, following a Declaration to provide specific points of contact and other pertinent information about the Declaration. k. May convene an initial scoping meeting with the signatories and other interested parties as soon as practicable after each Declaration to address Declaration-specific issues and procedures. l. Shall ensure that all documentation resulting from Undertakings reviewed pursuant to this Agreement is consistent with applicable SHPO guidelines and the confidentiality provisions of 36 CFR (c). m. With TXDPS, as appropriate, will present information about the Section 106 review process at all Applicants Briefings and Kickoff Meetings. 2. SHPO: a. Will participate in the review of Undertakings pursuant to this Agreement, including all actions delegated by FEMA to another party on its behalf in accordance with Stipulation II.C. b. Will provide FEMA with access to available information about historic properties in the disaster area, and guidance on related research to the best of SHPO s ability, including: i. Records of designated historic properties (including those listed in the National Register and with state-level designation of Recorded Texas Historic Landmark and State Antiquities Landmark (buildings only)) via the Texas Historic Sites Atlas at and restricted archeological site information to qualified professionals via the Texas Archeological Sites Atlas at ii. Historic Properties (including any known historic streets, roads or intersections) listed in or previously determined eligible for the National Register by the SHPO or Keeper of the National Register; iii. Properties recorded in the THC standing structures and archeological survey site files in Austin, Texas; iv. Unevaluated or under-evaluated historic properties in the Disaster area; and v. Geographic areas: 1) where sufficient cultural resource surveys have been conducted, and the survey results; FEMA, SHPO and TXDPS Texas Programmatic Agreement of 50

8 2) where there are not likely to be Historic Properties; and 3) where surveys have been conducted, but a high potential for unidentified or under-evaluated historic properties remains. c. Will identify SHPO staff or consultants to assist FEMA with its Section 106 responsibilities, and identify specific activities that SHPO may perform at FEMA s request. d. May delegate any of its responsibilities of this Agreement to a liaison(s) who is not a member of its staff. SHPO will consult with FEMA about the selection of the liaison; the scope of responsibilities delegated; and implementing procedures for the duties, actions, and decisions delegated. The delegation must be acceptable to FEMA, and formally documented. FEMA may provide funding for a liaison when applicable. e. Will assist FEMA in identifying out-of-state Tribes that claim affinity with properties of traditional, religious, and cultural significance in the State, including through information provided on the SHPO website at and will assist FEMA in identifying other groups or persons with jurisdiction or a demonstrated interest in Undertakings, Historic Properties, or other properties of traditional, religious, and cultural significance to Tribes in the Disaster area. f. Will assist Applicants and other local jurisdictions in identifying debris staging, chipping, and disposal sites that will not affect Historic Properties. 3. TXDPS: a. Will ensure that their Applicants understand and acknowledge conditions and potential requirements that may be placed upon Undertakings as a result of Section 106 consultation and the provisions of this Agreement. TXDPS will provide information about applicable Federal preservation laws; and guidance about in-kind repairs, pursuant to the Secretary s Standards for the Treatment of Historic Properties 1995 (Standards), 36 CFR Part 68, as updated and ensure that the Applicants understand and acknowledge any additional requirements placed on Undertakings as a result of Section 106 review, consultation, or other provisions of this Agreement; such as performing work in accordance with the U.S. Department of the Interior, National Park Service (NPS) Preservation Briefs. b. Will ensure that documentation provided for review pursuant to this Agreement is consistent with applicable SHPO guidelines when FEMA is not coordinating directly with these parties in accordance with Stipulation I.B.1.d. c. Will ensure that its Applicants are made aware that in the event of an unexpected discovery involving an Undertaking that has affected a previously unidentified historic property or human remains, or affected a known historic property in an unanticipated FEMA, SHPO and TXDPS Texas Programmatic Agreement of 50

9 manner, the Applicant will comply with Stipulation III.B, Unexpected Discoveries, Previously Unidentified Properties, or Unexpected Effects. d. Will ensure that in its Applicant agreements, any scope of work involving ground disturbance, and resultant contracts to execute said work, provide for the protection of and notification protocols for unexpected discoveries or unexpected effects to historic properties and human remains. e. Will require the Applicant to comply with all provisions of Stipulation II. B. f. Will require, to the greatest extent possible, that an Applicant will not begin demolition, ground disturbing, or construction activities until an Undertaking is approved by FEMA; and otherwise, such activities will jeopardize Federal funding of the Undertaking. g. Will ensure that their Applicants understand that failure to comply with any projectspecific conditions that have been placed on their grants could jeopardize FEMA funding. h. Will notify FEMA as soon as possible of any proposed change to the approved scope of work. TXDPS shall direct its Applicant not to implement the changes to the proposed scope of work until any additional review required by this Agreement is complete. 4. ACHP: a. Should the Texas Historical Commission be an Applicant for FEMA assistance, SHPO will be responsible for following their internal protocols and procedures, Protocols and Procedures for Consultation on Historic Sites Division Projects, for consultation with FEMA. If for any reason FEMA or SHPO determine that SHPO review of an Undertaking may otherwise be an apparent or actual conflict of interest, ACHP will review the Undertaking in lieu of SHPO. C. Public Participation 1. FEMA recognizes that the views of the public are essential to informed decision making throughout the Section 106 consultation process. FEMA shall notify the public of proposed Undertakings in a manner that reflects the nature, complexity, and effect(s) of the Undertaking, the likely public interest given FEMA s specific involvement, and any confidentiality concerns of affected Tribe(s) private individuals and businesses. 2. FEMA may consult with TXDPS, Applicant, and SHPO, to determine if there are individuals or organizations with a demonstrated interest in historic properties that should be made aware of an Undertaking. If such parties are identified or identify themselves to FEMA, FEMA shall provide them with information regarding the Undertaking and its FEMA, SHPO and TXDPS Texas Programmatic Agreement of 50

10 effect on historic properties, consistent with the confidentiality provisions of 36 CFR (c). 3. In accordance with the outreach strategy developed for an Undertaking in consultation with the SHPO for involving the public, FEMA shall identify the appropriate stages for seeking public input during the Section 106 consultation process. 4. FEMA shall consider all views provided by the public regarding an Undertaking and will consider all written requests of individuals and organizations to participate as consulting parties, and in consultation with the SHPO determine which should be consulting parties. FEMA will invite any individual or organization that will assume a specific role or responsibility outlined in a Section 106 agreement document to participate as a signatory party. 5. FEMA may also provide public notices and the opportunity for public comment or participation in an Undertaking through the public participation process of the National Environmental Policy Act (NEPA) and its implementing regulations set out at 44 CFR Part 10, and/or Executive Orders and relating to floodplains and wetlands as set out in 44 CFR Part 9, and Executive Order 12898, Environmental Justice, provided such notices specifically reference Section 106 as a basis for public involvement. 6. Should a member of the public object in writing to implementation of the Agreement s terms, FEMA will notify the other signatories in writing and take the objection into consideration. FEMA shall consult with the objecting party and, if that party so requests, the other Signatories, for not more than 30 days. In reaching its decision regarding the objection, FEMA shall take into consideration all comments from these parties. Within 15 days after closure of this consultation period, FEMA shall provide the other parties with its final decision in writing. D. Timeframes and Communications 1. All time designations shall be in calendar days unless otherwise stipulated. If any signatory does not object to FEMA s determination related to an Undertaking within an agreed upon timeframe, FEMA may proceed to the next step in the consultation process as described in Stipulation II, Project Review. Due to the varied nature of Undertakings, the individual response times to FEMA s requests for comment/concurrence may vary. The Signatories may send and accept official notices, comments, requests for further information and documentation, and other communications required by this Agreement by For Emergency Undertakings as outlined in Stipulation II.B.2(c)(i), Expedited Review of Emergency Undertakings, the SHPO shall respond to any FEMA request for comments within seven (7) days after receipt, unless FEMA determines the nature of the emergency action warrants a shorter time period. FEMA, SHPO and TXDPS Texas Programmatic Agreement of 50

11 3. For Undertakings associated with the Individual Assistance (IA) and Public Assistance (PA) programs, the review time will be a maximum of fifteen (15) days. 4. For the Hazard Mitigation Grant Program (HMGP) and all non-disaster programs, the response time for each request for concurrence shall be a maximum of thirty (30) days 5. FEMA will maintain a record of contact information for the Signatories. A Signatory may update this information by notification to FEMA without amending the Agreement. The Signatory will notify the Region VI Environmental Officer within thirty 30 days after an update, whereupon FEMA will notify the other Signatories of the update. II. PROJECT REVIEW A. Programmatic Allowances 1. If FEMA determines an Undertaking conforms to one or more allowances in Appendix B of this Agreement, FEMA shall complete the Section 106 review process by documenting this determination in the project file, without SHPO review or notification. 2. If the Undertaking involves a National Historic Landmark (NHL), FEMA shall notify the SHPO, and the Intermountain Regional NPS Office that the Undertaking conforms to one or more allowances. FEMA will provide information about the proposed scope of work for the Undertaking and the allowance(s) enabling FEMA s determination. 3. If the Undertaking involves a State Antiquities Landmark (SAL) (designated per the Antiquities Code of Texas, Title 9, Chapter 191, Texas Natural Resource Code), Recorded Texas Historic Landmark (RTHL) (per Section , Texas Government Code), or any current or former county courthouse (per Section , Texas Government Code), FEMA shall notify the SHPO that the Undertaking conforms to one or more allowances. FEMA will provide information about the proposed scope of work for the Undertaking and the allowance(s) enabling FEMA s determination. 4. If FEMA determines any portion of an Undertaking s scope of work does not conform to one or more allowances listed in Appendix B, FEMA shall conduct Section 106 review for the entire Undertaking in accordance with Stipulation II.B, Expedited Review for Emergency Undertakings, or Stipulation II.C, Standard Project Review. 5. Allowances may be revised and new allowances may be added to this Agreement in accordance with Stipulation IV.A., Amendments. B. Expedited Review for Emergency Undertakings 1. Determine Expedited Review a. As part of the Declaration process, FEMA shall define the time interval during which the disaster causing incident occurs (the incident period, as defined in 44 FEMA, SHPO and TXDPS Texas Programmatic Agreement of 50

12 CFR (f)). FEMA may approve Federal assistance and/or funding for emergency work (as defined in 44 CFR (b)) that occurs during the incident period, including work already completed, in response to an immediate threat to human health and safety or property. Pursuant to 36 CFR (d), FEMA may conduct expedited review of emergency Undertakings for 30 days from the beginning of the incident period. b. Should FEMA determine that it is necessary to extend the expedited review period beyond the initial 30 days, FEMA will, in 30-day increments, as needed, notify the ACHP and SHPO. 2. Conduct Expedited Reviews a. If the Undertaking is an immediate rescue and salvage operation conducted in response to an event to preserve life and property, FEMA has no Section 106 consultation responsibilities in accordance with 36 CFR (d); or b. If the emergency Undertaking meets one or more of the Allowances in Appendix B of this Agreement, FEMA shall complete the Section 106 review process pursuant to Stipulation II.A., Programmatic Allowances. c. If FEMA determines that the emergency Undertaking may adversely affect a historic property during this expedited review period: i. To the extent practicable FEMA may propose treatment measures that would address adverse effects during implementation, and request the comments of the SHPO within 7 days of receipt of this information unless FEMA determines the nature of the emergency warrants a shorter time period. ii. FEMA may provide this information through written requests, telephone conversations, meetings, or electronic media. In all cases, FEMA shall clarify that an expedited Undertaking review is being requested. iii. FEMA shall take into account any timely comments provided by SHPO. iv. Should the SHPO not comment within 7 days, FEMA may fund the emergency Undertaking based on the available information. This will complete the Section 106 consultation for the Undertaking. v. FEMA will notify the SHPO of the final decision, indicating how any comments received were considered in reaching that decision. C. Standard Project Review: For Undertakings not exempt from further Section 106 review, FEMA shall ensure that the following standard project review steps are implemented. In the interest of streamlining, FEMA may combine some or all of these steps during consultation. FEMA, SHPO and TXDPS Texas Programmatic Agreement of 50

13 1. Consulting Parties: FEMA shall consult as appropriate with the SHPO to identify any other parties that meet the criteria to be consulting parties and invite them to participate in the Section 106 consultation process. FEMA may invite others to participate as consulting parties as the Section 106 consultation proceeds. 2. Area of Potential Effects (APE): For standing structures not adjacent to or located within the boundaries of a National Register or eligible district, qualified staff shall define the APE as the individual structure when the proposed Undertaking is limited to the repair or rehabilitation (as defined in 36 CFR 68.3(b)). For all other Undertakings, Qualified staff shall determine the APE in consultation with the SHPO. FEMA may consider information provided by other parties, such as local governments and the public, when establishing the APE. 3. Identification and Evaluation: Qualified staff shall determine, in consultation with the SHPO if the APE contains historic properties, including archaeological sites or properties of religious or cultural significance, that are listed in or potentially eligible for the National Register. This may include the review of documentation provided by the State or Applicant in coordination with the SHPO. a. Level of Effort: FEMA shall make a reasonable and good faith effort to identify historic properties in accordance with 36 CFR 800.4(b)(1). FEMA may consult with the SHPO to determine the level of effort and methodology necessary to identify and define the limits of these properties. For historic properties of religious and cultural significance to affected Tribe(s), FEMA shall consult with the affected Tribe(s) to determine geographical areas containing historic properties of Tribal religious and cultural significance that may be affected by an Undertaking in order to determine the necessary level of effort to identify and evaluate or avoid any such historic properties. b. National Historic Landmarks: When FEMA determines an Undertaking has the potential to affect an NHL, FEMA shall notify the Secretary through the Intermountain Regional NPS Office Manager in addition to the SHPO, affected Tribe(s) and other consulting parties. The purpose of this notification is to ensure early coordination for the Undertaking which FEMA later may determine adversely affects the NHL as outlined in Stipulation II.C.6. c. Determinations of Eligibility: FEMA shall review or determine National Register eligibility based on identification and evaluation efforts, and consult with SHPO regarding these determinations. Should the SHPO disagree with the determination of eligibility, FEMA shall either: i. Elect to consult further with the objecting party; ii. Treat the property as eligible for the National Register; or FEMA, SHPO and TXDPS Texas Programmatic Agreement of 50

14 iii. Obtain a determination of eligibility from the Keeper of the National Register in accordance with 36 CFR 63.2(d)-(e) and 36 CFR 800.4(c)(2). 4. Findings of No Historic Properties Affected: FEMA shall make a finding of no historic properties affected under the following circumstances: a. If no historic properties are present in the APE; b. The Undertaking is designed to avoid historic properties, including archaeological sites or properties of religious or cultural significance to Tribe(s); or c. The Undertaking does not affect the character defining features of a historic property. d. FEMA shall notify the SHPO, and any other consulting parties of this finding and provide supporting documentation in accordance with 36 CFR (d). Unless the SHPO objects to the finding within the timeframe outlined in Stipulation I.D., Timeframes and Communications, FEMA shall complete the Section 106 review. e. If the SHPO, objects to a finding of no historic properties affected, FEMA shall consult with the objecting party to resolve the disagreement. i. If the objection is resolved, FEMA either may proceed with the Undertaking in accordance with the resolution or reconsider effects on the historic property by applying the criteria of adverse effect pursuant to Stipulation II.C.5, Application of the Criteria of Adverse Effect, below. ii. If FEMA is unable to resolve the disagreement, it will forward the finding and supporting documentation to the ACHP and request that the ACHP review FEMA s finding in accordance with 36 CFR 800.4(d)(1)(iv)(A) through 36 CFR 800.4(d)(1)(iv)(C). FEMA will consider the ACHP s recommendation in making its final determination. If FEMA s final determination is to reaffirm its no historic properties affected finding, the Section 106 review of the Undertaking will have concluded. Otherwise, FEMA will proceed to Stipulation II.C.5., below. 5. Application of the Criteria of Adverse Effect: If FEMA finds an Undertaking may affect historic properties in the APE, including properties of religious or cultural significance to affected Tribe(s), FEMA shall apply the criteria of adverse effect to historic properties within the APE(s), taking into account the views of the consulting parties and public concerning effects in accordance with 36 CFR 800.5(a). a. If FEMA determines that an Undertaking does not meet the adverse effect criteria FEMA shall propose a finding of no adverse effect in accordance with 36 CFR 800.5(b). FEMA, SHPO and TXDPS Texas Programmatic Agreement of 50

15 i. FEMA shall notify the SHPO, and all other consulting parties of its finding and provide supporting documentation pursuant to 36 CFR (e). ii. Unless a consulting party objects within the applicable timeframe outlined in Stipulation I.D. Timeframes and Communications, FEMA will proceed with its no adverse effect determination and complete the Section 106 review. iii. If a consulting party objects to a finding of no adverse effect, FEMA will consult with the objecting party to resolve the disagreement. 1) If the objection is resolved, FEMA shall proceed with the Undertaking in accordance with the resolution, or; 2) If the objection cannot be resolved, FEMA shall request that the ACHP review the findings in accordance with 36 CFR 800.5(c)(3)(i)-(ii) and submit the required supporting documentation. FEMA shall consider the ACHP s comments in making its final determination. b. If FEMA finds the Undertaking may adversely affect historic properties, FEMA shall request through the State that the Applicant revise the scope of work to substantially conform to the Standards for standing structures, or avoid or minimize adverse effects for National Register listed or eligible archaeological properties. i. If the Applicant modifies the scope of work to avoid the adverse effect, FEMA shall notify the consulting parties, and provide supporting documentation. Unless a consulting party makes a timely objection in accordance with the applicable timeframe outlined in Stipulation I.D. Timeframes and Communications, FEMA shall proceed with its no adverse effect determination, including any conditions, and complete the Section 106 review. ii. If an Undertaking is not modified to avoid the adverse effect(s), FEMA shall initiate consultation to resolve the adverse effect(s) in accordance with Stipulation II.C.6. Resolution of Adverse Effects. 6. Resolution of Adverse Effects: If FEMA determines that an Undertaking may adversely affect a historic property, it shall resolve the effects of the Undertaking in consultation with SHPO, TXDPS, the Applicant, and other consulting parties, by one of the following methods depending on the severity of the adverse effect(s) as well as determination of the historic property s significance on a local, state, or national level. When FEMA determines an Undertaking will adversely affect an NHL, FEMA shall notify and invite the Secretary and ACHP to participate in consultation in accordance with 36 CFR When the ACHP participates in consultation related to an NHL, the ACHP shall report the outcome of the consultation to the Secretary and the FEMA Administrator. FEMA, SHPO and TXDPS Texas Programmatic Agreement of 50

16 a. Abbreviated Consultation Process: For an Undertaking not affecting an NHL, after taking into consideration the significance of the historic properties affected, the severity of the adverse effect(s), and avoidance or minimization of the adverse effect(s), FEMA may propose in writing to the consulting parties to resolve the adverse effects of the Undertaking through the application of one or more Treatment Measures outlined in Appendix C as negotiated with the SHPO, TXDPS, the Applicant, and other consulting parties. The use of these Treatment Measures will not require the execution of a Memorandum of Agreement (MOA) or Programmatic Agreement. i. In consultation with the SHPO, TXDPS, Applicant, and other consulting parties, FEMA shall propose in writing the implementation of a specific Treatment Measure, or combination of Treatment Measures with the intent of expediting the resolution of adverse effects and provide documentation as required by 36 CFR (e) and subject to the confidentiality provisions of 36 CFR (c). Unless a consulting party or the ACHP objects within fifteen (15) days of receipt of FEMA s proposal, FEMA shall proceed with the use of Treatment Measures and will complete the Section 106 review. ii. If any of the consulting parties or the ACHP objects within the 15 day review and comment period to the resolution of adverse effects through the application of the Abbreviated Consultation Process, FEMA shall resolve the adverse effect(s) using procedures outlined below in Stipulation II.C.6(b), Memorandum of Agreement (MOA) or Stipulation II.C.6(c). Programmatic Agreement. iii. Because funding and implementation details of Treatment Measures for specific Undertakings may vary by program, FEMA shall provide written notice to the consulting parties within sixty (60) days of the completion of the Treatment Measures. This written notice will serve as confirmation that the Treatment Measures for a specific Undertaking have been implemented. FEMA also shall include information pertaining to the completion of Treatment Measures in the annual report pursuant to Stipulation I.B.1(d), FEMA Roles and Responsibilities. iv. FEMA will notify the ACHP of all adverse effects and afford the ACHP the opportunity to participate or comment on the project including those where agreed upon Standard Treatment Measures are implemented. b. Memorandum of Agreement: FEMA shall provide the ACHP with an adverse effect notice in accordance with 36 CFR 800.6(a)(1) if it has not already provided such under the Abbreviated Consultation Process of this Agreement, if a consulting party or the ACHP objects in accordance with Stipulation II.C.6(a)(ii), or if FEMA, in consultation with the SHPO, TXDPS, the Applicant, and other consulting parties, has determined that an MOA would be more appropriate to resolve the adverse effect(s). In consultation with the other consulting parties, FEMA, SHPO and TXDPS Texas Programmatic Agreement of 50

17 including the ACHP (if participating), FEMA shall develop an MOA in accordance with 36 CFR 800.6(c) to agree upon treatment measures to avoid, minimize, and/or mitigate adverse effects on historic properties. The MOA may also include treatment measures that serve an equal or greater public benefit in promoting the preservation of historic properties in lieu of more traditional treatment measures. Programmatic Agreement: Should the execution of an MOA be inappropriate given the similar nature of effects on historic properties, the inability to determine effects prior to approval of an Undertaking, or where other circumstances warrant, FEMA, the SHPO, the ACHP, if participating, and any other consulting party may consult to develop a Programmatic Agreement in accordance with 36 CFR (b) to identify programmatic conditions or treatment measures to govern the resolution of potential or anticipated adverse effects from certain complex project situations for an Undertaking or for multiple but similar Undertakings by a single Applicant. c. Objections: Should any signatory, consulting party, or member of the public object within the timeframes established by this Agreement to any plans, specifications, or actions pursuant to resolving an adverse effect, FEMA shall consult further with the objecting party to seek resolution. If FEMA determines the objection cannot be resolved, FEMA shall address in accordance with Stipulation IV.B., Dispute Resolution. D. Debris Operations: Staging, collecting, storing, chipping, burning, burying, or disposing. 1. An Applicant may provide available information about emergency debris operations to SHPO for review and comment. a. This information will include: the location of each site of activity, planned or completed debris operations, and any additional information required on the most current THC debris form. b. The Applicant will provide this information by the most expeditious, reasonable, and appropriate means possible: in writing, by facsimile, or electronically. 2. SHPO will comment within 7 days after receipt of sufficient information. a. SHPO may approve an Undertaking and notify FEMA if it determines that the Undertaking will not adversely affect a known Historic Property or a property that is at least 45 years old or meets the Allowances, Appendix B. The SHPO may request that an Applicant modify the scope of work, if feasible, to avoid adverse effects on Historic Properties. TXDPS will ensure that its Applicant implements any agreed upon modifications before proceeding. FEMA, SHPO and TXDPS Texas Programmatic Agreement of 50

18 b. Should SHPO make a no historic properties affected or no adverse effect determination, FEMA may request sufficient documentation of determination from the SHPO when an Applicant cannot provide it. 3. Should FEMA concur with the determination, it will document it in the project file and may fund the Undertaking. Otherwise, FEMA may consult with SHPO for not more than 7 days to resolve any objection, or will review the Undertaking pursuant to Stipulation II.C., Standard Project Review. 4. The SHPO will review debris operations only after it receives notification of a Disaster declaration from FEMA as stated in Stipulation I.B.1(k). 5. TXDPS will provide information to its Applicants about this review process through the Debris Management briefing, Grant Management training, Applicant Briefings and other appropriate methods. III. OTHER CONSIDERATIONS A. Changes to an approved scope of work: TXDPS is required to notify FEMA and will require its Applicants to notify it immediately when there are proposed changes to an approved scope of work for an Undertaking. 1. If FEMA determines the change meets an Allowance or has no effect on the property, FEMA will approve the change. 2. If the change can be modified to meet an Allowance, or conform to any applicable SOI Standards, FEMA will complete its Section 106 review responsibilities. 3. If FEMA determines that the change does not meet an Allowance, FEMA will initiate consultation pursuant to Stipulation II.C, Standard Project Review. B. Unexpected Discoveries, Previously Unidentified Properties, or Unexpected Effects: 1. Through the SLA with each of its Applicants, TXDPS will require the Applicant to notify it immediately if it appears that an Undertaking will affect a previously unidentified, potential, or known Historic Property (standing structure or archeological site) in an unanticipated manner. 2. TXDPS will require the Applicant to stop construction activities in the vicinity of the discovery; and take all reasonable measures to avoid, protect, and minimize harm to the property until the consultation required by Stipulation III. E is completed. 3. TXDPS may request that the Applicant document the discovery in writing. FEMA, SHPO and TXDPS Texas Programmatic Agreement of 50

19 4. TXDPS will notify FEMA of the discovery at the earliest practicable time, but not later than 24 hours after notification by the Applicant. 5. FEMA will notify SHPO and any other party that may have an interest in the discovery at the earliest practicable time, but not later than 72 hours after notification by TXDPS. FEMA will initiate consultation with these parties pursuant to Stipulation III. E. C. Archeological Deposits: This section applies to archeological deposits; including those discovered during construction activities, archeological investigations, or removal of tree root balls. 1. TXDPS will require the Applicant to secure the area of the discovery and restrict access to the deposits. After initial review by an archeologist meeting the Secretary of the Interior s standards for archeologists has assessed the site FEMA may authorize the Applicant to resume work in an area that does not contain Historic Properties or human remains, with the concurrence of the SHPO. 2. FEMA will consult by telephone or to assess and avoid any possible adverse effects to the historic property. If adverse effects to an historic property or State Antiquities Landmark have occurred or are unavoidable, these adverse effects will be mitigated as is described through consultation processes outlined in Stipulation II.C.6 and the Antiquities Code of Texas, while reconstruction and recovery work continues in nearby areas. 3. FEMA will ensure compliance with applicable Federal laws and regulations, including Archeological Resources Protection Act (ARPA), for discoveries on Federal or tribal land. D. Burial Sites, Human Remains, and Funerary Objects: This section applies to the discovery of burial sites, human remains, and funerary objects. 1. TXDPS will require the Applicant to preserve the site as found, and immediately notify local law enforcement as required by Texas law. 2. With its notification to FEMA and SHPO, TXDPS will identify steps taken to secure the site and notify the appropriate agency. 3. TXDPS will ensure that the Applicant complies with Chapter 711 of the Texas Health and Safety Code and any other applicable laws. Should the appropriate law enforcement official and/or medical examiner determine that discovered human remains are related to a criminal investigation, SHPO will not record the discovery as an archeological site. FEMA will complete the review and may fund the Undertaking. 4. Should the official and/or medical examiner determine that remains/objects discovered on private, local, or State land are not related to a crime and release the scene back to the owner, SHPO will consult with FEMA and the Applicant regarding appropriate treatment of the remains. Should the official determine that the remains/objects are or may be FEMA, SHPO and TXDPS Texas Programmatic Agreement of 50